SZNYF & Anor v Minister for Immigration and Citizenship

[2013] HCASL 126

SZNYF & ANOR

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 126
S52/2013

1. The applicants, who are husband and wife, are citizens of China.  Following their arrival in Australia they applied for protection visas.  The protection claims were those made by the wife.  She claimed to have a well-founded fear of persecution based on her Catholic faith.

2. A delegate of the first respondent refused the applications on 29 April 2009.  That decision was affirmed by the Refugee Review Tribunal ("the Tribunal") on 25 August 2009.  That determination was quashed by the Federal Court of Australia on 10 August 2010 and the review was remitted to the Tribunal for reconsideration.

3. On 2 December 2011, the Tribunal (differently constituted) again affirmed the decision of the delegate.  The Tribunal did not accept that the first applicant was a member of an "underground" Catholic Church in China.  It pointed to inconsistencies between her account to the delegate and her evidence before the Tribunal. 

4. The applicants applied for judicial review of the Tribunal's determination in the Federal Magistrates Court (Cameron FM).  They asserted that an incomplete paragraph (par [300]) in the Tribunal's statement of its reasons disclosed jurisdictional error.  The paragraph contained a summary of the first applicant's evidence of an incident in which she claimed to have suffered a head injury with resulting memory loss.  The paragraph concluded with a statement "[t]he Tribunal does not accept that this incident took place because".  The applicants submitted that a reasonable observer might conclude that the Tribunal had rejected the first applicant's evidence without having formulated reasons for that rejection[1].  Cameron FM considered that the incomplete paragraph was merely a typographical error and that the Tribunal's reasons as a whole revealed "a thoughtful examination of the applicants' claims, inconsistent with arbitrary decision-making"[2].  His Honour dismissed the application. 

   [1]SZNYF v Minister for Immigration [2012] FMCA 1034 at [31].

   [2]SZNYF v Minister for Immigration [2012] FMCA 1034 at [34].

5. An appeal to the Federal Court of Australia (Nicholas J) was dismissed.

6. The applicants apply for special leave to appeal.   Their written case is directed to the assertion that the incomplete paragraph evidenced jurisdictional error.  Nicholas J correctly rejected that submission.  The Tribunal expressly rejected the first applicant's evidence concerning her claimed head injury and gave detailed reasons for rejecting her evidence more generally.  If special leave to appeal were granted, the appeal would have no prospect of success. 

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler